Mediation

Mediation

Parties to litigation often turn to other expedient forms of resolving disputes in an effort to avoid the high cost of litigation or arbitration. One such method is mediation.

The parties may decide to resolve their dispute by way of private mediation. The parties agree to employ a private mediator who assists and facilitates negotiations or settlement of a dispute in an informal manner. The mediator typically identifies the strengths and weaknesses in each party's case and attempts to find a fair resolution of the dispute.

Ethical rules for mediators involved in court related mediations are found in the revised California Rules of Court, MEDIATOR ETHICAL STANDARDS, PART 1. Rules of Conduct for Mediators in Court-Connected Mediation Programs for Civil Cases, Title V, Special Rules for Trial Courts-Division III, Alternative Dispute Resolution Rules for Civil Cases-Chapter 4, General Rules Relating to Mediation of Civil Cases-Part 1, Rules of Conduct for Mediators in Court-Connected Mediation Programs for Civil Cases, adopted effective January 1, 2003.

The majority of sophisticated contracting parties and their legal counsel regularly employ mediation as an effective method of resolving construction disputes.

Construction mediation is often expensive in its own right, especially if a party is brought in on a cross-complaint and has little or no real exposure in the case. In other instances, mediations can occur over numerous sessions without real progress (when the author was a full time litigator, he attended a mediation for an airport dispute that was conducted over 16 sessions).

As such, there are reasonable standards for when parties need to participate in extended mediation sessions. In Jeld-Wen Inc. v. Superior Court , 146 Cal. App. 4th Dist. 536 (2007), the court of appeal stated that trial courts do not have the power to send litigants to private mediations of complex construction disputes or pay for private mediation of those disputes. As a practical matter, the Courts may conduct their own Mandatory Settlement Conferences, appoint Special Masters or Referees for handling pre-settlement discovery, including production of insurance information and policies from the parties.

In addition, there are special statutes that must be observed by mediation participants. The first is confidentiality. Nothing said during mediation or prepared for or during mediation is admissible in later court proceedings, including whether a party was reasonable or negotiating in good faith in the mediation process. (Evidence Code 1115).